In terror case, security trumps legal rights

The prosecution of Zacarias Moussaoui as the alleged 20th hijacker in the Sept. 11 attacks is creating friction with fundamental civil liberties guaranteed in the US Constitution.

At issue is the extent to which federal prosecutors may continue to impose strict, special security measures on Mr. Moussaoui that directly hinder his ability to serve as his own lawyer and develop an effective defense.

Moussaoui is being held in solitary confinement and barred from nearly all contact with the outside world. Prosecutors say the harsh tactics are necessary to shield the nation from possible acts of terror carried out by Moussaoui from his cell.

Defense lawyers familiar with Moussaoui's situation say it is a constitutional "train wreck" in the making. They say that unless the government allows Moussaoui to consult with legal experts, find and talk to defense witnesses, and gain access to key evidence, his right to a fair trial will be effectively denied.

No direct precedent

The fair-trial issue is particularly acute in cases like Moussaoui's in which the US government is seeking the death penalty, these lawyers say. In fact, no American judge has ever directly ruled on the issue emerging in this case: whether federal prosecutors may impose security restrictions that significantly tie the hands of a defendant who is representing himself in a capital-punishment case.

"I can't think of an analogous circumstance in which you hand the keys to the defense over to the prosecutors and say, 'You get to decide the kind of access [Moussaoui] has to the outside world, even as it affects his ability to defend himself," says Gerald Zerkin, an assistant federal public defender who is on a team of experienced lawyers appointed as standby counsel for Moussaoui.